State v. . Howard, 82 N.C. 623

Ashe, J.

The first exception was to the adjournment-, of the court from Saturday until Monday, while the jury had the prisoner in charge. Sunday, according to the usages and practice of our courts, is not a juridical day, and it was altogether proper that the court should have been adjourned over from Saturday until Monday. There has been some instances in the judicial proceedings in this state where the courts have held their session on Sunday, but the cases are rare, and wfhenever it has been done, exception, we believe, has generally been taken to the course of the court, upon the ground that it could not legally sit on that day. But this court has held that in special cases ex necessitate the court might sit on Sunday. State v. Ricketts, 74 N. C., 187, and State v. McGimsey, 80 N. C., 377. The holding court on the Sabbath is not forbidden by the common law or any statute in this state, but it has been the long settled and almost universal practice of our courts, when a term continues so long that a Sunday intervenes, to adjourn over until Monday; and “long practice makes the law of a court,” a law which has its origin and observance in a deference to the ■settled religious habits and sentiments of a large majority of our citizens, a law whose violation is not excused except ■in oase of necessity. The objection is unfounded.

The next exception, that His Honor refused to allow the prisoner’s challenge to a juror because he had served on the .jury within two years next preceding that term of the court, is equally untenable. The act of 1879, ch. 200, under which the challenge w.as claimed, provides: “That it shall be a disqualification and ground of challenge to any tales juror that such juror has acted in the same court as grand or petit juror within two years next preceding such term of 'the court.” The juror challenged on his voir dire, stated that he had not served as grand or petit juror in the superior court of Wayne county within two years next preceding that term of the court, but had within that time acted as a juror in the inferior court. This did not disqualify the juror. The construction put upon this statute by this court is, that the juror must have acted in that capacity in the same court within the time limited. State v. Outerbridge, ante, 617; State v. Thorne, 81 N. C., 555.

The next exception is that the court allowed the state to prove, that twelve months before the homicide the prisoner in conversation with one Isaac Williams, a witness for the state, said to him, ‘‘don’t you reckon if any one was to run in on old man Babel Autrey (the deceased) he would get a handful of money.” It was in proof by-other witnesses that the deceased was robbed on the night of the homicide of a considerable amount of money, and that he was .generally reputed to be a man of property and kept money in his house. The evidence of this conversation was cleanly admissible, if for no other purpose, that it tended to affect the prisoner with a knowledge -of the reputation that the deceased kept money in his house.

The remaining exception, that the court excluded the evidence of the declarations of the prisoner to the witness Carlton Sessoms on the -day of the night of the homicide, giving the reason why he had gone to the house of the deceased that morning, we hold -was properly overruled. One Hester Autrey, a witness for the prosecution, testified that on the day of the night of the homicide she saw the prisoner, unaccompanied by any one, come from his own house and go to the house of the deceased, and there near his house have a conversation with him, and then went off through the premises in the direction of the house of one Carlton Sessoms, who, on his examination by the prisoner, testified that the prisoner, on the morning of the day of the alight of the homicide, about nine or ten o’clock, came to his house from the direction of the house of the deceased and remained about a half hour, and in conversation with witness stated the reason why he had gone to the house of the deceased that morning. It w.as the rejection of this evidence that formed the ground of the exception. “ As evi dence, what a party says is received against him but not for him. Unless bis declarations form a part of the transaction, they are not receivable in evidence.” State v. Tilly, 3 Ired., 424 State v. Worthington, 64 N. C., 594.

In the case of State v. Hildredth, 9 Ired., 440, this court held* the rule to be, “ that a person’s declarations are not admissible for him. The rule is not founded on the idea that they would never contribute to the ascertainment of truth, for very often they might be entirely satisfactory, but there i& so much danger,, if they were received, that they would most commonly consist of falsehoods fabricated for the occasion, and so would mislead oftener than they would enlighten., that it was found indispensable as a part of the law of evidence to reject them altogether, except under a few peculiar circumstances.”' We do not see that this evidence falls* within any exception. The conversation was not a part of the res gestee. The transaction was past and the evidence offered comes within the rule of exclusion.

There is no ground for a new trial or arrest of judgment. There is no error. Let this be certified to the superior court of Wayne county that further proceedings may be had agreeably to this opinion and the law.

Pee Cukiam. No error.

Case Details

Case Name: State v. . Howard

Court Name: Supreme Court of North Carolina

Date Published: Jan 5, 1880

Citation: 82 N.C. 623

Court Abbreviation: N.C.